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Sunshine Report for July 2018

VCOG's Megan Rhyne traveled to Front Royal in June to give a presentation on FOIA to members of the West Central District of the Commissioners of the Revenue Association of Virginia.

Show up for advocacy

When Frosty Landon, the former editor of this newspaper and the first director of the Virginia Coalition for Open Government (VCOG), first took me under his wing as an assistant back at the turn of the century, he shared with me a simple but powerful bit of advice about advocacy: Show up. I finally understood the significance of showing up when I started attending committee meetings at the General Assembly with him. When I took the reins of the coalition in 2008 and headed into my first legislative session in 2009, I remembered Frosty’s advice. I was going to show up. I was going to wave the flag of open government and the people’s right to know. I wanted people to see me and immediately think “FOIA,” “sunshine,” and “transparency.”

The FOIA Council's subcommittee on open meetings is looking into whether FOIA should include some sort of requirement that public meetings include a public comment period.

The same subcommittee agreed to look into possible legislation designed to curtail elected officials from secretly texting each other during public meetings.

Even if text exchanges aren’t illegal, FOIA Council members said, elected officials should understand that any messages related to public business are public records subject to disclosure, regardless of whether the phone used to type them was government-issued or a personal device, according to a report in the Richmond Times-Dispatch.

The FOIA council's records subcommittee is reviewing a proposal from Sen. Bill DeSteph to make certain social media accounts of General Assembly members exempt from disclosure. It is also continuing a review of a possible omnibus trade secrets exemption, an issue that has generated more than 30 meetings over the past few years.

The council's subcommittee on remedies moved forward on a proposal to give more weight to council opinions. The proposal, originally brought in a bill by Del. Mike Mullin, is headed to the full council for consideration later this month. VCOG's legal fellow, Andrew Abraham, has done research on how other states with a FOIA Council-type office weight their opinions.

Conference reminder

VCOG's next annual conference will take place during Sunshine Week 2019 instead of during the fall. There will be no conference in the fall of 2018.

You might also consider a sustaining subscription to the daily and monthly newsletters. Go to www.opengovva.org/donate and make make a note on your contribution that you are supporting our newsletters.

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Open government in the news

A circuit judge ordered Charlottesville city officials to turn over emails, messages and other documents related to the 2017 decision to remove two downtown statues of Confederate generals. Though not a FOIA case, the judge included in the order the letters and other communications sent via private accounts and devices. "Unfortunately, we do not have a nice divide between business and personal life anymore,” Judge Richard E. Moore said.

A Norfolk judge ruled a Virginian-Pilot reporter would not have to testify at the trial of Portsmouth City Councilman Mark Whitaker. Had the subpoena to testify been allowed to stand, the reporter would have been barred from the courtroom for all parts of the trial except his own testimony. The judge found the reporter's testimony would not be essential to the case.

FOIA's records and meetings provisions were central to an incident among members of the Leesburg Town Council over allegations that the mayor was seen driving away from a local restaurant while drunk. The council voted against holding a closed meeting to discuss the allegation. Later, one of the council members who had called for the closed meeting left the mayor a voicemail apologizing for his role in the "smear campaign." The member later claimed he didn't use the phrase "smear campaign," but a copy of the voicemail posted by The Loudoun Times-Mirror confirmed he did.

Virginia recently released a "Virginia History Trails" app filled with more than 400 stories and 200 detailed site descriptions chronicling Virginia's history, from military conflicts to Native American stories.

Through multiple FOIA requests to Danville Utilities it was revealed that 34 churches had been charged under the wrong rate for five years and were due refunds ranging from $6,481.54 to $45,243.75.

A year after VCOG joined with the Reporters Committee for Freedom of the Press, the Virginia Press Association and the Virginia Association of Broadcasters to complain about rules limiting journalist access to prisoners, a policy banning recording devices remains in place.

The Dayton Town Council released a statement about the demotion of the former police chief characterized as having been approved by the council, yet there was no meeting where the council voted on or even discussed the letter.

A Vinton man filed a FOIA complaint against the Roanoke Electoral Board alleging he had not been provided with notice of upcoming meetings, even though he had signed up to receive regular notices. He also claimed the board did not publish notice on its website.

Virginia Tech professor Marc Edwards teamed up with the Mackinac Center Legal Foundation in Midland, Michigan, to file a FOIA suit against Wayne State University for deliberately ignoring multiple FOIA requests for records related to research faculty did in the wake of the Flint water system crisis.

The chair of the Metropolitan Washington Airports Authority told a reporter at The Washington Post that there was no value in sharing the authority's CEO's employment contract. That prompted D.C.'s congressional representative, Eleanor Holmes Norton, to write to to the agency demanding it release details of the contract. MWAA is not subject to any open records laws, even though the two biggest airports are in Virginia, but in the past the contract had been released.

Police departments in Henrico, Chesterfield and Richmond are following Virginia Beach in its plans to encrypt police scanner transmissions that the press has typically used to cover news stories and to alert the public about emergencies. Richmond's police chief said the move was "about officer safety," not an attempt to circumvent transparency. He cited a March 22 incident where radio traffic from the press and public "compromise[d] our tactical decision-making."

Acting pursuant to a state law in effect for the past year, Virginia State Police would not reveal the name of a 15-year-old Abingdon boy killed in a "hood surfing" accident, which prompted the Bristol Herald Courier to note that the law hampers the press' ability "to tell his story, to mark his passing." The boy's name was revealed on social media and confirmed by the medical examiner's office.

The Nelson County Planning Commission had to postpone its decision on a special use permit application after discovering that part of the site plan was not made available for public view prior to its June 27 meeting on the issue.

The Haymarket Town Council censured the vice mayor and stripped him of his title after the mayor shared an email he obtained via FOIA where the vice mayor told a local reporter he thought the "mayor and his acolytes" were going to be "a rubber stamp approval" of a development project. "It’s unfortunate that the Mayor hides his correspondence behind the ‘skirt’ of exemption to FOIA as the chief executive but that is indicative of his leadership," the email continued.